Argued and Submitted, Seattle, Washington May 16, 2014.
Appeal from the United States District Court for the District of Montana. D.C. No. 4:06-cr-00045-SEH-1. Sam E. Haddon, District Judge, Presiding.
The panel reversed the district court's denial of Bill Watson's 2013 motion pursuant to the Innocence Protection Act to order DNA testing of underwear, clothes, and vaginal swabs in a case in which Watson was convicted in 2006 of knowingly attempting to engage in a sexual act with a person physically unable to communicate unwillingness.
The panel held that Watson satisfied the preconditions that he identify a theory of defense that would establish his actual innocence, and that the identity of the perpetrator was at issue in the trial.
The panel held that new DNA tests that make previously-useless DNA capable of identification amount to " newly discovered DNA evidence" under the Act, even though the underwear and semen are not, thereby rebutting the presumption of the motion's untimeliness.
Elizabeth L. Griffing, Axilon Law Group, PLLC, Missoula, Montana; Wendy Holton, Helena, Montana; Brendan McQuillan, Montana Innocence Project, Missoula, Montana, for Defendant-Appellant.
Michael Cotter, United States Attorney, and Laura B. Weiss, Assistant United States Attorney, Great Falls, Montana, for Plaintiff-Appellee.
Colin M. Stephens (briefed), The Innocence Network, Missoula, Montana, for Amicus Curiae The Innocence Network.
Before: Diarmuid F. O'Scannlain, Andrew J. Kleinfeld, and Marsha S. Berzon, Circuit Judges. Opinion by Judge Kleinfeld.
Andrew J. Kleinfeld, Senior Circuit Judge:
We address whether new DNA tests that make previously useless DNA capable of identification amount to " newly discovered DNA evidence" under the Innocence Protection Act.
Bill Watson was indicted for knowingly attempting to engage in a sexual act with a person physically unable to communicate unwillingness, as well as for assault of the victim's brother with a dangerous weapon. The case came to federal court because the indictment charged that Watson, " an Indian person," committed the crimes " within the boundaries of the Rocky Boy's Indian Reservation, being Indian Country." He was convicted of the sex crime but not the assault, and sentenced to 178 months of imprisonment to be followed by five years of supervised release.
The alleged sex crime and assault occurred at a party at J.M.B.'s house. Her mother was away, and the teenaged children and their friends had obtained two bottles of rum. J.M.B., then 14 years old, got so drunk that a friend and her brother were concerned about her choking on her vomit while she slept, and gagged her to make her throw up. After she ...